Registration test decision
Application name: Singleton
Name of applicant: Leslie Foster Mpetyane, Tommy Thompson Kngwarraye, Ena Rex Mpetyane
State/territory/region: Northern Territory
NNTT file no.: DC00/10
Federal Court of Australia file no.: NTD6011/00
Date application made: 23 June 2000
Date application last amended: 30 July 2007
Name of delegate: Louise Bygrave
I have considered this claim for registration against each of the conditions contained in ss. 190B and 190C of the Native Title Act 1993 (Cwlth). For the reasons attached, I am satisfied that each of the conditions contained in ss. 190B and 190C are met. I accept this claim for registration pursuant to s. 190A of the Native Title Act 1993 (Cwlth). For the purposes of s.190D, my opinion is that the claim satisfies all of the conditions in s. 190B.
Date of decision: 12 December 2007
______Louise Bygrave Delegate of the Native Title Registrar pursuant to sections 190, 190A, 190B, 190C, 190D of the Native Title Act 1993 (Cwlth).
Reasons for decision
Table of contents
Introduction...... 5 Delegation of the Registrar’s powers...... 5 The test ...... 5 Application overview...... 5 Information considered when making the decision ...... 6 Procedural and other conditions: s. 190C...... 7 Section 190C(2) Information etc. required by ss. 61 and 62...... 7 Delegate’s comment ...... 7 Native title claim group: s. 61(1) ...... 7 Result...... 7 Reasons...... 7 Name and address for service: s. 61(3)...... 8 Result...... 8 Reasons...... 8 Native title claim group named/described: s. 61(4)...... 8 Result...... 8 Reasons...... 8 Application in prescribed form: s. 61(5)...... 9 Result...... 9 Reasons...... 9 Affidavits in prescribed form: s. 62(1)(a) ...... 9 Result...... 10 Reasons...... 10 Application contains details required by s. 62(2): s. 62(1)(b) ...... 10 Delegate’s comment ...... 10 Result...... 10 Information about the boundaries of the area: s. 62(2)(a) ...... 10 Result...... 10 Reasons...... 10 Map of external boundaries of the area: s. 62(2)(b) ...... 11 Result...... 11 Reasons...... 11 Searches: s. 62(2)(c)...... 11 Result...... 11 Reasons...... 11 Description of native title rights and interests: s. 62(2)(d)...... 11
Result...... 11 Reasons...... 11 Description of factual basis: s. 62(2)(e)...... 12 Result...... 12 Reasons...... 12 Activities: s. 62(2)(f) ...... 12 Result...... 12 Reasons...... 12 Other applications: s. 62(2)(g)...... 12 Result...... 12 Reasons...... 12 Section 29 notices: s. 62(2)(h) ...... 13 Result...... 13 Reasons...... 13 Combined result for s. 62(2) ...... 13 Combined result for s. 190C(2) ...... 13 Section 190C(3) No common claimants in previous overlapping applications ...... 13 Result...... 13 Reasons...... 13 Section 190C(4) Authorisation/certification...... 14 Result...... 14 Reasons...... 14 Merit conditions: s. 190B...... 16 Section 190B(2) Identification of area subject to native title...... 16 Delegate’s comment ...... 16 Information regarding external and internal boundaries: s. 62(2)(a) ...... 16 Result...... 16 Reasons...... 16 Map of external boundaries: s. 62(2)(b)...... 16 Result...... 16 Reasons...... 16 Combined result for s. 190B(2)...... 16 Section 190B(3) Identification of the native title claim group...... 17 Result...... 17 Reasons...... 17 Section 190B(4) Native title rights and interests identifiable ...... 21 Result...... 21 Reasons...... 21 Section 190B(5) Factual basis for claimed native title ...... 23 Delegate’s comments...... 23 Result re s. 190B(5)(a) ...... 25 Reasons re s. 190B(5)(a)...... 25 Result re s. 190B(5)(b)...... 28 Reasons re s. 190B(5)(b)...... 28
Result re s. 190B(5)(c) ...... 31 Reasons re s. 190B(5)(c)...... 31 Combined result for s. 190B(5)...... 31 Section 190B(6) Prima facie case...... 32 Result...... 32 Reasons...... 32 Section 190B(7) Traditional physical connection ...... 35 Result...... 35 Reasons...... 35 Section 190B(8) No failure to comply with s. 61A ...... 36 Delegate’s comments...... 36 No approved determination of native title: s. 61A(1) ...... 36 Result...... 36 Reasons...... 36 No Previous Exclusive Possession Acts (PEPAs): ss. 61A(2) and (4)...... 36 Result...... 37 Reasons...... 37 No exclusive native title claimed where Previous Non-Exclusive Possession Acts (PNEPAs): ss. 61A(3) and (4) ...... 37 Result...... 37 Reasons...... 37 Combined result for s. 190B(8)...... 37 Section 190B(9) No extinguishment etc. of claimed native title...... 38 Delegate’s comments...... 38 Result re s. 190B(9)(a) ...... 38 Reasons re s. 190B(9)(a)...... 38 Result re s. 190B(9)(b)...... 38 Reasons re s. 190B(9)(b)...... 38 Result re s. 190B(9)(c) ...... 38 Reasons re s. 190B(9)(c)...... 38 Combined result for s. 190B(9)...... 39 Attachment A Summary of registration test result ...... 40 Attachment B Documents and information considered ...... 42
Introduction This document sets out my reasons for the decision to accept the claimant application for registration. Section 190A of the Native Title Act 1993 (Cwlth) (the Act) requires the Native Title Registrar to apply a ‘test for registration’ to the claims made in all claimant applications given to him or her under ss. 63 or 64(4) by the Registrar of the Federal Court of Australia (the Court), with the exception of certain amended applications specified under subsection 190A(1A). Subsection 190A(6) requires that I must be satisfied that all the conditions set out in ss. 190B and 190C of the Act are met, in order for me to accept a claim for registration. I note that the test in this particular instance has been triggered by the transitional provisions of the Native Title Amendment (Technical Amendments) Act 2007 (Cwlth) (the Technical Amendments Act) which commenced operation on 1 September 2007 (see Schedule 5). Note: All references in these reasons to legislative sections refer to the Native Title Act 1993 (Cwlth), which I shall call ‘the Act’, as in force on 1 September 2007, unless otherwise specified. Please refer to the Act for the exact wording of each condition.
Delegation of the Registrar’s powers I have made this registration test decision as a delegate of the Native Title Registrar (the Registrar). The Registrar delegated his powers regarding the registration test and the maintenance of the Register of Native Title Claims under ss. 190, 190A, 190B, 190C and 190D of the Act to certain members of staff of the National Native Title Tribunal, including myself, on 27 September 2007. This delegation is in accordance with s. 99 of the Act. The delegation remains in effect at the date of this decision.
The test In order for a claimant application to be placed on the Register of Native Title Claims, s. 190A(6) requires that I must be satisfied that all the conditions set out in ss. 190B and 190C of the Act are met. Section 190B sets out conditions that test particular merits of the claim for native title. Section 190C sets out conditions about ‘procedural and other matters’. Included amongst the procedural conditions is a requirement that the application must contain certain specified information and documents. In my reasons below I consider the s. 190C requirements first, in order to assess whether the application contains the information and documents required by s. 190C before turning to questions regarding the merit of that material for the purposes of s. 190B. A summary of the result for each condition is provided at Attachment A.
Application overview The Singleton native title determination application (the application) is an amended application, which replaces the Singleton application that was accepted for registration on 21 July 2000.
The application was filed pursuant to an order of the Federal Court made on 30 July 2007. A copy was forwarded to the Tribunal pursuant to s. 64(4) of the Act on 9 August 2007.
Information considered when making the decision Section 190A(3) directs me to have regard to certain information when testing an application for registration; there is certain information that I must have regard to, but I may have regard to other information, as I consider appropriate. I am also guided by the case law (arising from judgments in the courts) relevant to the application of the registration test. Among issues covered by such case law is the issue that some conditions of the test do not allow me to consider anything other than what is contained in the application while other conditions allow me to consider wider material. However, given that the registration test has in this instance been triggered by Schedule 5 of the transitional provisions of the amendments to the Act referred to above, I must also abide by subitem 1(4)(b) of Schedule 5. This requires me to apply the registration test under s. 190A as if the conditions in ss. 190B and 190C that require the application to be accompanied by certain information or other things, or to be certified or have other things done, also allowed the information or other things to be provided, and the certification or other things to be done, by the applicant or another person after the application was made. Attachment B of these reasons lists all of the information and documents that I have considered in reaching my decision. I have not considered any information that may have been provided to the Tribunal in the course of the Tribunal providing assistance under ss. 24BF, 24CF, 24CI, 24DG, 24DJ, 31, 44B, 44F, 86F or 203BK, without the prior written consent of the person who provided the Tribunal with that information, either in relation to this claimant application or any other claimant application or any other type of application, as required of me under the Act. I also have not considered any information provided to the Tribunal in the course of its mediation functions in relation to this or any other claimant application. I take this approach because matters disclosed in mediation are ‘without prejudice’ (see s. 136A of the Act). Further, mediation is private as between the parties and is also generally confidential (see also ss. 136E and 136F).
Procedural and other conditions: s. 190C Section 190C(2) Information etc. required by ss. 61 and 62 The Registrar/delegate must be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by sections 61 and 62.
Delegate’s comment I address each of the requirements under ss. 61 and 62 in turn and I come to a combined result for s. 190C(2) at page 13. I note that I am considering this claim against the requirements of s. 62 as it stood prior to the commencement of the Technical Amendments Act. This legislation made some minor technical amendments to s. 62 which only apply to claims made from the date of commencement of the act on 1 September 2007 onwards, and the claim before me is not such a claim. In the case of Attorney General of Northern Territory v Doepel (2003) 133 FCR 112 (Doepel) at [16], Mansfield J stated that ‘section 190C(2) is confined to ensuring the application, and accompanying affidavits or other materials, contains what is required by ss 61 and 62’. His Honour also said at [39] in relation to the requirements of s. 190C(2): ‘...I hold the view that, for the purposes of the requirements of s 190C(2), the Registrar may not go beyond the information in the application itself.’ I am of the view that Doepel is authority for the proposition that when considering the application against the requirements in s. 190C(2), I am not (except in the limited instance which I explore below in my reasons under s. 61(1)) to undertake any qualitative or merit assessment of the prescribed information or documents, except in the sense of ensuring that what is found in or with the application are the details, information or documents prescribed by ss. 61 and 62.
Native title claim group: s. 61(1) The application must be made by a person or persons authorised by all of the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group.
Result The application meets the requirement under s. 61(1).
Reasons I must consider whether the application sets out the native title claim group in the terms required by s. 61(1). That is one of the procedural requirements to be satisfied to secure registration: s. 190A(6)(b). If the description of the native title claim group in the application indicates that not
all persons in the native title group are included, or that it is in fact a subgroup of the native title claim group, then the requirements of s. 190C(2) would not be met and the claim would not be accepted for registration—Doepel at [36]. This consideration does not involve me going beyond the information contained in the application and prescribed accompanying affidavits: see Doepel at [37]. In particular, it does not require me to undertake some form of merit assessment of the material to determine whether I am satisfied that the native title claim group is in reality the correct native title claim group—Doepel at [37]. In light of the decision in Doepel, I have confined my considerations to the information contained in the application itself. The description of the persons in the native title claim group is found in Schedule A of the application, which I have set out in my reasons in relation to s. 190B(3) below. There is nothing on the face of the description in Schedule A to indicate that the native title claim group described does not include all the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the native title claimed. For these reasons, I am satisfied that the description of the persons in the native title claim group meets the requirement in s. 61(1).
Name and address for service: s. 61(3) The application must state the name and address for service of the person who is, or persons who are, the applicant.
Result The application meets the requirement under s. 61(3).
Reasons The name and address for service of the applicant appear at Part B of the application.
Native title claim group named/described: s. 61(4) The application must: (a) name the persons in the native title claim group, or (b) otherwise describe the persons in the native title claim group sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.
Result The application meets the requirement under s. 61(4).
Reasons The application provides a description of the persons in the native title claim group. The issue of whether there is a sufficiently clear description so that it can be ascertained whether any particular person is a person in the native title claim group is decided under the corresponding merit condition in s. 190B(3): see Gudjala #2 v Native Title Registrar [2007] FCA 1167 at [31] (Gudjala).
Application in prescribed form: s. 61(5) The application must: (a) be in the prescribed form, (b) be filed in the Federal Court, (c) contain such information in relation to the matters sought to be determined as is prescribed, and (d) be accompanied by any prescribed documents and any prescribed fee.
Result The application meets the requirement under s. 61(5).
Reasons s. 61(5)(a) The application is in the form prescribed by Regulation 5(1)(a) Native Title (Federal Court) Regulations 1998. s. 61(5)(b) The application was filed in the Federal Court as required pursuant to s. 61(5)(b). s. 61(5)(c) The application meets the requirements of s. 61(5)(c) as, for the reasons outlined below in relation to s. 62, it contains the information prescribed by s. 62. s. 61(5)(d) As required by s. 61(5)(d), the application is accompanied by the prescribed documents, which are the applicant affidavits prescribed by s. 62(1)(a). I refer to my reasons in relation to s. 62(1)(a) below. I note that s. 190C(2) only requires me to consider details, other information and documents required by ss. 61 and 62. I am not required to consider whether the application has been accompanied by the payment of a prescribed fee to the Federal Court. For the reasons outlined above, it is my view that the requirements of s. 61(5) are met.
Affidavits in prescribed form: s. 62(1)(a) The application must be accompanied by an affidavit sworn by the applicant that: (i) the applicant believes the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application, and (ii) the applicant believes that none of the area covered by the application is also covered by an entry in the National Native Title Register, and (iii) the applicant believes all of the statements made in the application are true, and (iv) the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it, and (v) stating the basis on which the applicant is authorised as mentioned in subparagraph (iv).
Result The application meets the requirement under s. 62(1)(a).
Reasons Section 62(1)(a) provides that the application must be accompanied by an affidavit sworn by the applicant in relation to the matters specified in subparagraphs (i)–(v). To satisfy the requirements of s. 62(1)(a), the persons comprising the applicant may jointly swear an affidavit or alternatively, each of the persons may swear an individual affidavit. The application is accompanied by affidavits from each person jointly comprising the applicant, namely: Tommy Thompson Kngwarraye dated 3 April 2007; Leslie Foster Mpetyane dated 3 April 2007; and Ena Rex Mpetyane dated 3 April 2007. I note that the affidavit of Ena Rex Mpetyane also refers to ‘Ena Rex Nampin’. For the purposes of this application, I accept that these refer to one and the same person. Each of these affidavits is signed by the deponent and competently witnessed. I am satisfied that each of the affidavits sufficiently address the matters required by s. 62(1)(a)(i)–(v).
Application contains details required by s. 62(2): s. 62(1)(b) The application must contain the details specified in s.62(2).
Delegate’s comment My decision regarding this requirement is the combined result I come to for s. 62(2) below. Subsection 62(2) contains eight (8) paragraphs (from (a) to (h)), and I address each of these subrequirements in turn, as follows immediately here. My combined result for s. 62(2) is found at page 13 below and is one and the same as the result for s. 62(1)(b) here.
Result The application meets the requirement under s. 62(1)(b).
Information about the boundaries of the area: s. 62(2)(a) The application must contain information, whether by physical description or otherwise, that enables the following boundaries to be identified: (i) the area covered by the application, and (ii) any areas within those boundaries that are not covered by the application.
Result The application meets the requirement under s. 62(2)(a).
Reasons Schedule B of the application contains a description of the area covered by the application and a description of any areas within those boundaries that are not covered by the application.
Map of external boundaries of the area: s. 62(2)(b) The application must contain a map showing the boundaries of the area mentioned in s. 62(2)(a)(i).
Result The application meets the requirement under s. 62(2)(b).
Reasons Schedule C refers to Attachment C, which is a map showing the application area and its boundaries.
Searches: s. 62(2)(c) The application must contain the details and results of all searches carried out to determine the existence of any non-native title rights and interests in relation to the land and waters in the area covered by the application.
Result The application meets the requirement under s. 62(2)(c).
Reasons Schedule D refers to Attachment D, which is a copy of searches of existing tenure made with the Northern Territory Registrar-General’s Office and the Northern Territory Department of Lands, Planning and Environment. There is no information before me to indicate that the applicant has made any other searches of the kind described in this section.
Description of native title rights and interests: s. 62(2)(d) The application must contain a description of native title rights and interests claimed in relation to particular lands and waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law.
Result The application meets the requirement under s. 62(2)(d).
Reasons Schedule E contains a description of the claimed native title rights and interests. The description does not merely consist of a statement to the effect that the native title rights and interests claimed are all the native title rights and interests that may exist, or that have not been extinguished, at law.
Description of factual basis: s. 62(2)(e) The application must contain a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist, and in particular that: (i) the native title claim group have, and the predecessors of those persons had, an association with the area, and (ii) there exist traditional laws and customs that give rise to the claimed native title, and (iii) the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.
Result The application meets the requirements under s. 62(2)(e).
Reasons A general description of the factual basis on which it is asserted that the native title claimed exists and for the particular assertions in s. 62(e)(i)–(iii) is found at Schedules A, E, F, G, M and R of the application.
Activities: s. 62(2)(f) If the native title claim group currently carries out any activities in relation to the area claimed, the application must contain details of those activities.
Result The application meets the requirement under s. 62(2)(f).
Reasons Schedule G provides a list of thirteen (13) activities that members of the native title claim group currently carry out on the application area.
Other applications: s. 62(2)(g) The application must contain details of any other applications to the High Court, Federal Court or a recognised state/territory body of which the applicant is aware, that have been made in relation to the whole or part of the area covered by the application and that seek a determination of native title or of compensation in relation to native title.
Result The application meets the requirement under s. 62(2)(g).
Reasons Schedule H states that the applicant is not aware of any native title determination applications entered on the Register of Native Title Claims covering any parts of the area claimed in this application.
Section 29 notices: s. 62(2)(h) The application must contain details of any notices given under s. 29 (or under a corresponding provision of a law of a state or territory) of which the applicant is aware that relate to the whole or a part of the area covered by the application.
Result The application meets the requirement under s. 62(2)(h).
Reasons This information is contained in Schedule I of the application, which refers to one s. 29 notice with a notification date of 24 March 2000. There is no information before me to indicate that the applicant is aware of any other s. 29 notices in relation to the application area. I also have regard to an assessment of s. 29 notices by the Tribunal’s Geospatial Services (GeoTrack number 2007/1426) dated 24 August 2007, which states that there are eleven (11) s. 29 or equivalent notices, as notified to the Tribunal, within the external boundary of the amended application area.
Combined result for s. 62(2) The application meets the combined requirements of s. 62(2), because it meets each of the subrequirements of ss. 62(2)(a) to (h), as set out above. See also the result for s. 62(1)(b) above.
Combined result for s. 190C(2) The application satisfies the condition of s. 190C(2), because it does contain all of the details and other information and documents required by ss. 61 and 62, as set out in the reasons above. Section 190C(3) No common claimants in previous overlapping applications The Registrar/delegate must be satisfied that no person included in the native title claim group for the application (the current application) was a member of the native title claim group for any previous application if: (a) the previous application covered the whole or part of the area covered by the current application, and (b) the previous application was on the Register of Native Title Claims when the current application was made, and (c) the entry was made, or not removed, as a result of the previous application being considered for registration under s. 190A.
Result The application satisfies the condition of s. 190C(3).
Reasons A search of the Register of Native Title Claims as at 4 December 2007 indicates that there are no applications that fall within the external boundary area of the amended application. An
assessment by the Tribunal’s Geospatial Services (GeoTrack number 2007/1426) dated 24 August 2007 confirms this finding. Section 190C(4) Authorisation/certification Under s. 190C(4) the Registrar/delegate must be satisfied either that: (a) the application has been certified under s. 203BE, or under the former s. 202(4)(d), by each representative Aboriginal/Torres Strait Islander body that could certify the application, or (b) the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group.
Under s. 203BE(4), certification of a claimant application by a representative body must: (a) include a statement to the effect that the representative body is of the opinion that the requirements of ss. 203BE(2)(a) and (b) have been met (regarding the representative body being of the opinion that the applicant is authorised and that all reasonable efforts have been made to ensure the application describes or otherwise identifies all the persons in the native title claim group), and (b) briefly set out the body’s reasons for being of that opinion, and (c) where applicable, briefly set out what the representative body has done to meet the requirements of s. 203BE(3)(regarding overlapping applications).
Under s. 190C(4A), the certification of an application under Part 11 by a representative Aboriginal/Torres Strait Islander body is not affected where, after certification, the recognition of the body as the representative Aboriginal/Torres Strait Islander body for the area concerned is withdrawn or otherwise ceases to have effect.
Result I must be satisfied that the circumstances described by either ss. 190C(4)(a) or (b) are the case, in order for the condition of s. 190C(4) to be satisfied. For the reasons set out below, I am satisfied that the circumstances described by s. 190C(4)(a) are the case in this application because the application has been certified by each representative Aboriginal/Torres Strait Islander body that could certify the application.
Reasons The application is certified by the Central Land Council, as the representative Aboriginal and Torres Strait Islander body for the land and waters covered by this application, pursuant to s. 190C(4)(a). Schedule K of the application confirms that the Central Land Council is the only representative Aboriginal/Torres Strait Islander body for the area covered by the application. I note that, as s. 190C(4)(a) is satisfied, I am not required to ‘undertake the task which s. 190C(4)(b) would otherwise impose of considering whether, upon the material before [me], the necessary authorisation [has] been given’ Doepel—at [79]. Mansfield J in Doepel also stated that: section 203BE(2) provides emphatically that the representative body “must not” provide its certificate unless it is of the opinion that all the persons in the native title claim group have
authorised the applicant to make the application and to deal with matters arising in relation to it. In my judgment, section 190C(4)(a) does not leave some residual obligation upon the Registrar, once satisfied of the matters to which s 190C(4)(a) expressly refers, to revisit the certification of the representative body—at [81]. The certification of the native title determination application is at Schedule R. The certificate is dated 10 May 2007 and is signed by the Director of the Central Land Council. Pursuant to s. 203BE(4)(a), the certificate contains a statement that the Central Land Council is of the opinion that the requirements of s. 203BE(2)(a) and (b) have been met, namely, that: • all the persons in the native title claim group have authorised the applicant to make the application and to deal with matters arising in relation to it; and • all reasonable efforts have been made to ensure that the application describes or otherwise identifies all the other persons in the native title claim group. In accordance with s. 203BE(4)(b), the certification briefly sets out the reasons for the Central Land Council being of the opinion that s. 203BE(2)(a) and (b) are met. The certification outlines the authorisation process for the applicant at a meeting held in Tennant Creek on 3 April 2007. In summary: • the meeting was organised and facilitated by the Central Land Council and attended by members of the native title claim group and staff from the Central Land Council; • there was a decision-making process about country and who has authority to speak for and act on behalf of a landholding group in accordance with traditional laws and customs; and • in accordance with this decision-making process, the persons jointly comprising the applicant (Leslie Foster Mpetyane, Tommy Thompson Kngwarraye and Ena Rex Mpetyane) were authorised to make decisions relating to the application and to deal with matters arising in relation to the application. I note that this information is consistent with the authorisation meeting process stated in the affidavits of Tommy Thompson Kngwarraye dated 3 April 2007 (paragraphs 5–7); Leslie Foster Mpetyane dated 3 April 2007 (paragraphs 5–7); and Ena Rex Mpetyane dated 3 April 2007 (paragraphs 5–7). The certification also outlines the research process undertaken by the Central Land Council to identify all potential persons in the native title claim group. In summary: • the Central Land Council conducted anthropological and historical research in relation to the persons who hold native title rights and interests in the application area; and • this research conducted by the Central Land Council indicated that the people comprising the native title claim group described in the application are the only people who assert native title rights and interests in the application area, and the membership of the native title claim group accords with the traditional laws and customs observed by the group. Pursuant to s. 203BE(4)(c), the certification states that the Central Land Council is not aware of any other application or proposed application that partly or wholly covers the application area. I am satisfied that the conditions of s. 190C(4) have been met.
Merit conditions: s. 190B Section 190B(2) Identification of area subject to native title The Registrar must be satisfied that the information and map contained in the application as required by ss. 62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.
Delegate’s comment I consider whether the condition of s. 190B(2) is met firstly with respect to what is required by s. 62(2)(a) and then with respect to what is required by s. 62(2)(b). I come to a combined result for whether or not s. 190B(2) as a whole is met at pages 16–17 below.
Information regarding external and internal boundaries: s. 62(2)(a) The application must contain information, whether by physical description or otherwise, that enables identification of the boundaries of: (i) the area covered by the application, and (ii) any areas within those boundaries that are not covered by the application.
Result The application satisfies the condition of s. 190B(2) with respect to what is required by s. 62(2)(a).
Reasons I refer to my reasons below under ‘Combined result for s. 190B(2)’.
Map of external boundaries: s. 62(2)(b) The application must contain a map showing the boundaries of the area mentioned in s. 62(2)(a)(i).
Result The application satisfies the condition of s. 190B(2) with respect to what is required by s. 62(2)(b).
Reasons I refer to my reasons below under ‘Combined result for s. 190B(2)’.
Combined result for s. 190B(2) For the reasons below, the application satisfies the condition of s. 190B(2) as a whole. The application contains a written description of the external and internal boundaries of the application area at Schedule B. A map of the application area is found at Attachment C.
Schedule B (paragraph 1) identifies the area covered by the application as ‘NT Portion 653 comprising an area of 2,949 square kilometres held under Perpetual Pastoral Lease No. 1022 by the Australian Land & Cattle Company Pty Ltd’ and (paragraph 2) refers to the map at Attachment C. Schedule B (paragraph 3) lists general exclusions from the application area. Schedule C refers to Attachment C, which is an A3 colour copy of a map titled ‘Singleton PPL No. 0102, Australian Land & Cattle Company Pty Ltd, Volume 549 Folio 026’, produced by the Central Land Council and dated 13 January 2000. The map at Attachment C includes the application area depicted as a bold black cross hatch; coordinates in decimal degrees (AGD66) for corners of the application area; land parcels and topographic features; scalebar and legend; and notes relating to the source, currency and datum of data used to prepare the map. An assessment of the application area map and description prepared by the Tribunal’s Geospatial Services (GeoTrack 2007/1426) dated 24 August 2007 confirms that the description and map are consistent and identify the application area with reasonable certainty. I have had regard to this expert advice and accept its findings. For these reasons, I am satisfied that the application complies with s. 190B(2) and s. 62(2)(a) and (b). Section 190B(3) Identification of the native title claim group The Registrar must be satisfied that: (a) the persons in the native title claim group are named in the application, or (b) the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.
Result The application satisfies the condition of s. 190B(3).
Reasons In Doepel at [51], Mansfield J stated that: The focus of s. 190B(3)(b) is whether the application enables the reliable identification of persons in the native title claim group. Section 190B(3) has two alternatives. Either the persons in the native title claim group are named in the application: subs 3(a). Or they are described sufficiently clearly so it can be ascertained whether any particular person is in that group: subs (3)(b). Although subs (3)(b) does not expressly refer to the application itself, as a matter of construction, particularly having regard to subs (3)(a), it is intended to do so. And at [37], Mansfield J noted that the focus of s. 190B(3) is not ‘upon the correctness of the description of the native title claim group, but upon its adequacy so that the members of any particular person in the identified native title claim group can be ascertained’. Dowsett J in Gudjala also stated that the description of the native title claim group at s. 190B(3) ‘requires only that the members of the claim group be identified, not that there be a cogent explanation of the basis upon which they qualify for such identification’—at [33].
Section 190B(3) has ‘requirements which do not appear to go beyond consideration of the terms of the application’—Doepel at [16]. In accordance with these comments, I have confined my considerations to the information contained in the application itself. As outlined above under s. 61(1), the description of the persons in the native title claim group is found in Schedule A of the application, which states: 1. The native title claim group comprises the members of the Akwerlpe-Waake, Ileyarne, Lyentyawel Ileparranem and Arrawatyen landholding groups (“the landholding groups”). Those persons according to the traditional laws acknowledged and customs observed by them: (a) have spiritual, physical and/or historical associations (as described in Schedule F) with the area described in Schedule B (“the application area”) and are traditionally connected to the area through: (i) descent from ancestors (including adoption) connected with the application area as described in paragraph 7(a) below; or (ii) non-descent based connections as described in paragraphs 7(b) and 9 below; and (b) hold the common or group rights and interests comprising the native title in the application area.
2. The application area is part of Kaytetye territory. The common body of traditional laws acknowledged and customs observed by members of the native title claim group govern how rights and interests in land are acquired and who holds them in particular parts of Kaytetye territory, including the application area. The four landholding groups which together comprise the native title claim group constitute a community or group whose members hold the common or group rights comprising the native title over the application area as a whole.
3. The term “estate” is used to describe the land and waters associated with a landholding group. The four landholding groups are named after their respective estate areas and are affiliated to the following parts of the application area: (a) Akwerlpe-Waake: western portion; (b) Ileyarne: south-central and south-east portion; (c) Lyentyawel Ileparranem (sometimes referred to by one or the other of these names): eastern portion; (d) Arrawatyen: north and north-eastern portion.
4. Although the application area is located wholly within Kaytetye linguistic territory the native title claim group includes people whose linguistic affiliations are to neighbouring languages. Under the traditional laws acknowledged and customs observed by members of the native title claim group rights in land are not acquired through membership of a language group. Accordingly, linguistic affiliation or language group identity is not necessarily indicative of a person's connection to particular land and waters.
5. Two of the four landholding groups were previously found to satisfy the requirements of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ('Land Rights Act'): (a) Akwerlpe-Waake. Kaytej, Warlpiri and Warlmanpa Land Claim (Report No. 14, Report by the Aboriginal Land Commissioner, Mr Justice Toohey, to the Minister for Aboriginal Affairs and to the Administrator of the Northern Territory, Australian Government Publishing Service, Canberra, Commonwealth of Australia 1982); Warumungu Land Claim (Report No. 31, Report by the Aboriginal Land Commissioner, Mr Justice Maurice, to the Minister for Aboriginal Affairs and to the Administrator of the Northern Territory, Australian Government Publishing Service,
Canberra, Commonwealth of Australia 1988); McLaren Creek Land Claim (Report No. 32, Findings, Recommendation and Report of the Aboriginal Land Commissioner, Mr Justice Olney, to the Minister for Aboriginal Affairs and the Administrator of the Northern Territory, Australian Government Publishing Service, Canberra, Commonwealth of Australia 1991); (b) Arrawatyen (Arrawajin). Warumungu Land Claim (Report No. 31, Report by the Aboriginal Land Commissioner, Mr Justice Maurice, to the Minister for Aboriginal Affairs and to the Administrator of the Northern Territory, Australian Government Publishing Service, Canberra, Commonwealth of Australia 1988). In the Hatches Creek and proposed Davenport Range National Park Native Title Claim (No. DG6002 of 1998) Lyentyawel Ileparranem and Arrawatyen were among the seven landholding groups whose members were found to hold native title rights and interests in the determination area (see The Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia [2004] FCA 472).
6. The persons authorised to make the application are members of the Akwerlpe-Waake (2) and Ileyarne (1) landholding groups.
Membership of the native title claim group 7. In accordance with the claimants’ system of traditional laws and customs in relation to membership of a landholding group and the possession of rights and interests in an estate the native title claim group comprises all those persons who are: (a) descendants (by birth or adoption) of one or more of the following named and unnamed ancestors of the respective landholding groups (‘the ancestors’): (i) Akwerlpe-Waake: Two brothers: Mpetyane Wakurlpu-arenye, Mpetyane Waake- arenye (father’s fathers for Leslie Foster Mpetyane and Mick Waake Mpetyane), and their two sisters, both unnamed Mpetyane; (ii) Ileyarne: Two Kngwarraye brothers (one having no known descendants the other being the father of Tommy ‘Galloper’ Kapetye); (iii) Lyentyawel Ileparranem: Awawerr Penangke and her sister, the mother of Jim MacClean Thangale; (iv) Arrawatyen: Lame Ilpathik Tommy Thangale, Blanche Pitangali Thangale, Johnson Thangale and Pilinanta Thangale; (b) accepted as members of one (or more) of the landholding groups by the senior descent based members of the landholding group on the basis of their non-descent connections to the estate (see paragraph 9 below).
8. The named ancestors identified in paragraph 7(a) are the uppermost generation of the known ancestors of members of the native title claim group.
9. Under the claimants’ system of traditional laws and customs a person who is not descended from the ancestors becomes a member of a landholding group when accepted by the senior descent based members of the group on the basis of non-descent connections to the estate. The non-descent connections that senior members of a landholding group have regard to when considering the recruitment of a particular individual are: (a) spiritual identification with and responsibility for an estate; (b) conception and/or birthplace affiliation with an estate; (c) long term residence in an estate; (d) close kinship ties, including intermarriage; (e) shared sub/section and/or moiety affiliation; (f) more distant ancestral connections to an estate, for example, mother’s father’s mother;
(g) possession of secular knowledge of an estate; (h) possession of traditional spiritual knowledge, authority and responsibility for an estate; (i) authority and responsibility for shared Dreaming tracks and/or places of significance connected with an estate; (j) seniority in traditional matters concerning the landholding group and/or the estate.
10. The claimants’ system of traditional laws and customs includes rules about succession. Traditional succession processes have been recognised in relation to land in the region of the application area: see Warumungu Land Claim, Report No. 31, paragraphs 23.1.1-23.1.2 and 23.3.1- 23.4.1. There have been no instances of succession in relation to the application area. Additional information about these rules is contained in Schedule F.
11. Under the claimants’ system of traditional laws and customs descent from an ancestor is the most important basis for the possession of rights and interests in land. Subject to individual circumstances members of the landholding groups who are descended from one of the ancestors identified in paragraph 7(a) possess and transmit a wide range of traditional rights and interests.
12. Under the claimants’ system of traditional laws and customs rights and interests in land are inherited through all four grandparental lines. However, the members of a landholding group with descent connections through father’s father and mother’s father are generally able to activate the widest range of rights in relation to the estate.
13. Under the claimants’ system of traditional laws and customs the range of rights and interests in land possessed by members of a landholding group who are not descended from the ancestors depends on individual circumstances, including the nature and extent of their non-descent connections to the estate. Such rights and interests are usually limited to the individual and are not transmittable.
14. A number of members of the native title claim group are members of more than one landholding group, for example, due to different grandparental links to multiple estates.
15. The composition of the native title claim group is based upon the applicant's system of traditional laws and customs. Schedule A does not name the persons in the native title claim group for the purposes of s. 190B(3)(a). I must therefore be satisfied that the requirements of s. 190B(3)(b) are met, namely that the persons in the native title claim group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group. In accordance with Doepel, that description must appear in the application itself. In my view, s. 190B(3)(b) requires that an objective method of determining who is in the claim group be described in the application. The point that a factual inquiry may be required to ascertain whether or not a person is in a claim group does not mean that the group has not been sufficiently described: see Western Australia v Native Title Registrar (1999) 95 FCR 93 at [67]. In Ward v Registrar, National Native Title Tribunal [1999] FCA 1732 at [25]–[27], Carr J stated that the test under s. 190B(3)(b) is whether the group is described sufficiently clearly so that it can be ascertained whether any particular person is in the group, i.e. by a set of rules or principles. However, this does not necessarily mean that any formula will be sufficient to meet the
requirements of s. 190B(3)(b). It is for the Registrar or his delegate to determine whether or not the description is sufficiently clear and the matter is largely one of degree with a substantial factual element. Schedule A (paragraph 7) identifies membership of the native title claim group on the basis of descent and non-descent. Schedule A (paragraph 7(a)) states that the membership of the native title claim group comprises all persons who are biological and adopted descendants of twelve (12) apical ancestors—nine (9) of whom are named with known descendants. As there is no explanation in Schedule A about the way in which people are adopted into the native title claim group, I will assume that adoption is in accordance with the traditional laws and customs of the claim group. By referencing the identification of members of the native title claim group to named apical ancestors, I am of the view that it is possible to objectively verify the identity of members of the claim group, such that it can be clearly ascertained whether any particular person is in the group. Schedule A (paragraph 7(b)) identifies membership of the native title claim group on the basis of non-descent connections to the application area. The criterion for non-descent connections are detailed in Schedule A (paragraph 9). As the basis upon which non-descent membership of the claim group may occur is outlined clearly in the application, I am satisfied that the description is sufficient to determine whether any particular person is in the group. For the above reasons, I am satisfied that the requirements of s. 190B(3)(b) are met. Section 190B(4) Native title rights and interests identifiable The Registrar must be satisfied that the description contained in the application as required by s. 62(2)(d) is sufficient to allow the native title rights and interests claimed to be readily identified.
Result The application satisfies the condition of s. 190B(4).
Reasons Section 190B(4) requires the Registrar or his delegate to be satisfied that the description contained in the application of the claimed native title rights and interests is sufficient to allow the rights and interests to be readily identified. For the purposes of the condition, then, only the description contained in the application can be considered–Doepel at [16]. Section 62(2)(d) requires that the application contain: a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests) but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law. This terminology suggests that Parliament intended to screen out applications that describe native title rights and interests in a manner that is vague or unclear.
Schedule E in the application contains the following description of the claimed native title rights and interests: 1. The native title rights and interests claimed in relation to the application area are the rights set out below including the right to conduct activities necessary to give effect to them: (a) the right to access and travel over any part of the land and waters; (b) the right to live on the land, and for that purpose, to camp, erect shelters and other structures; (c) the right to hunt, gather, take and use the natural resources of the land and waters, including the right to access, take and use natural water resources on or in the land; (d) the right to access, maintain and protect places and areas of importance on or in the land and waters; (e) the right to do the following activities on the land: (i) engage in cultural activities; (ii) conduct ceremonies; (iii) hold meetings; (iv) teach the physical and spiritual attributes of places and areas of importance; (v) participate in cultural practices relating to birth and death including burial rites; (f) the right to make decisions about the use and enjoyment of the land and waters by Aboriginal people who recognise themselves as governed by Aboriginal traditional laws and customs and who acknowledge the traditional laws and customs of the claimants; (g) the right to share and exchange natural resources obtained on or from the land and waters, including traditional items made from the natural resources.
2. All the rights and interests listed in paragraph 1 existed and continue to exist in relation to the application area as a whole.
3. The native title rights and interests claimed do not confer possession, occupation, use and enjoyment of the application area to the exclusion of all others.
4. The applicant acknowledges that the native title rights and interests are subject to and exercisable in accordance with valid laws of the Northern Territory of Australia and the Commonwealth of Australia.
5. The common or group rights and interests comprising the native title are held by the members of the four landholding groups who together comprise the native title claim group over the application area as a whole. However, the distribution of rights and interests within the group and in respect of different parts of the application area is governed by the claimants’ system of traditional laws and customs, including: (a) the particular association that members of the native title claim group have with one or more of the landholding groups and their respective estate areas; and (b) individual circumstances, including age, gender, knowledge, and physical and mental capacity.
6. The activities referred to in Schedules G and M were and are undertaken in the exercise of the native title rights and interests set out in paragraph 1. To meet the requirements of s. 190B(4), I need only be satisfied that at least one (1) of the rights and interests claimed is sufficiently described for it to be readily identifiable.
I am satisfied that all the native title rights and interests claimed in the application at Schedule E (paragraph 1 (a)–(g)) are readily identifiable. I note that the native title rights and interests claimed at paragraph 1 (a)–(g) are non-exclusive as stated in paragraph 3 of Schedule E. I am satisfied that the requirements of s. 190B(4) are met. Section 190B(5) Factual basis for claimed native title The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions: (a) that the native title claim group have, and the predecessors of those persons had, an association with the area, and (b) that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interest, and (c) that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.
Delegate’s comments I consider each of the three assertions set out in the three paragraphs of s. 190B(5) in turn and come to combined result for s. 190B(5) at page 31 below. For the conditions of s. 190B(5) to be satisfied, the Registrar or his delegate is not limited to the consideration of statements contained in the application (as for s. 62(2)(e)) but may refer to additional material supplied to the Registrar under this condition: Martin v Native Title Registrar [2001] FCA 16 (Martin) and Doepel at [16]. Therefore, I will have regard to the application as a whole, subject to s. 190A(3); and I may also have regard to relevant information that is not contained in the application. The provision of material disclosing a factual basis for the claimed native title rights and interests is the responsibility of the applicant. It is not a requirement that the Registrar or his delegate undertake a search for this material—Martin at [23]. In Doepel, Mansfield J stated at [17] that: Section 190B(5) is carefully expressed. It requires the Registrar to consider whether the ‘factual basis on which it is asserted’ that the claimed native title rights and interests exist ‘is sufficient to support the assertion’. That requires the Registrar to address the quality of the asserted factual basis for those claimed rights and interests; but only in the sense of ensuring that, if they are true, they can support the existence of those claimed rights and interests. In other words, the Registrar is required to determine whether the asserted facts can support the claimed conclusions. The role is not to test whether the asserted facts will or may be proved at the hearing, or to assess the strength of the evidence which may ultimately be adduced to establish the asserted facts. Therefore, I must be satisfied pursuant to s. 190B(5), that a sufficient factual basis is provided to support the assertion that the rights and interests claimed in the application exist. In particular, I must be satisfied that the factual basis provided is sufficient to support the assertions that the whole native title claim group have, and their predecessors had, an association with the application area; there are traditional laws and customs, acknowledged and observed by the native
title group that give rise to the claimed native title rights and interests; and the native title claim group has continued to hold native title in accordance with those traditional laws and customs. I have also relied upon the High Court’s decision in Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 (Yorta Yorta), particularly the passages at [50] to [56] and at [82] to [89]. In that decision, the majority of the High Court noted that the word ‘traditional’ refers to a means of transmission of law or custom, and conveys an understanding of the age of traditions. Their Honours said that ‘traditional’ laws and customs are those normative rules which existed or were ‘rooted in pre-sovereignty traditional laws and customs’: at [46], [79]. This normative system must have continued to function uninterrupted from the time of acquisition of sovereignty to the time when the native title claim group sought determination of native title. The court at [50] emphasized the importance of the continuity of the society or group having those ‘normative’ laws and customs: To speak of rights and interests possessed under an identified body of laws and customs is, therefore, to speak of rights and interests that are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs. And if the society out of which the body of laws and customs arises ceases to exist as a group which acknowledges and observes those laws and customs, those laws and customs cease to have continued existence and vitality. Their content may be known but if there is no society which acknowledges and observes them, it ceases to be useful, even meaningful, to speak of them as a body of laws and customs acknowledged and observed, or productive of existing rights or interests, whether in relation to land or waters or otherwise. As noted by Mansfield J in Risk v Northern Territory of Australia [2006] FCA 404 at [57], the requirement for continuity of connection is not absolute. In this regard, his Honour refers to the following statements from Yorta Yorta: …demonstrating some change to, or adaptation of, traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim… The key question is whether the law and custom can still be seen to be a traditional law and traditional custom. Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples—at [83]. I note that Mansfield J’s decision in Risk v Northern Territory of Australia [2006] FCA 404 was upheld by the Full Court of the Federal Court in Risk v Northern Territory of Australia [2007] FCAFC 46. It must be shown that ‘the society, under whose laws and customs the native title rights and interests are said to be possessed, has continued to exist throughout that period as a body united by its acknowledgment and observance of the laws and customs’—Yorta Yorta at [89]. Section 190B(5) was recently the subject of consideration by the Federal Court in the decision of Gudjala which involved an application for judicial review of a s. 190A registration decision. In that case, Dowsett J reasserted the principles of the Yorta Yorta decision and explained that the asserted factual basis must establish that there are traditional laws and customs that are acknowledged or observed by the whole native title claim group and which give rise to the group’s claim to native title rights and interests—Gudjala at [62].
Material which addresses the requirements of s. 190B(5) is contained in Schedules A, E, F, G, M and R, and the affidavits of the applicant. I note that the Central Land Council provided further material referred to in Schedule F (paragraph 17(c)) on 5 November 2007, namely: • Spencer, B. and Gillen F.J., (1904) The Northern Tribes of Central Australia, Macmillian and Co, London. Pages 1–5, 12–14, 30–31, 74–76, 97–98, 107, 135–136, 152–165, 184–191, 198, 628–632, endpiece (map). • Stuart, J.M., ([1865] facsimile edition 1975) The Journals of John McDouall Stuart During the Years 1858, 1859, 1860, 1861 and 1862, Library Board of South Australia, Adelaide. Pages 198– 215. • Bell, D., (1983) Daughters of the Dreaming, McPhee Gribble, Melbourne. Pages 47–50, 54, 60–70, 130–132, 188–190. • Koch G. and Koch, H., (1993) Kaytetye Country: an Aboriginal history of Barrow Creek area, Alice Springs, Institute for Aboriginal Development. Pages xiii-xvii, 66-72, 112–115. • Moyle, R.M., (1986) Alyawarra Music: songs and society in a central Australian community, Canberra, Australian Institute of Aboriginal Studies. Pages 15, 104–106.
Result re s. 190B(5)(a) I am satisfied that the factual basis provided is sufficient to support the assertion described by s. 190B(5)(a).
Reasons re s. 190B(5)(a) The factual basis at s. 190B(5)(a) must provide that the native title claim group as a whole has an association with the claim area. The applicant also must show evidence of an association between the predecessors of the whole group and the claim area over the period since sovereignty. It is not sufficient for a factual basis to be provided that some members of the claim group and their predecessors may be, or have been, associated with the claim area—Gudjala at [41], [51] and [52]. The application outlines the spiritual, physical and historical association between the native title claim group comprising members of the Akwerlpe-Waake, Ileyarne, Lyentyawel Ileparranem and Arrawatyen landholding groups and the claim area, which is part of Kaytetye linguistic territory. In particular, Schedule A (paragraph 3) details the Akwerlpe-Waake association with the western portion of the claim area; the Ileyarne association with the south-central and south-east portion; the Lyentyawel Ileparranem association to the eastern portion; and the Arrawatyen association to the north and north-eastern portion of the claim area. Schedule A (paragraph 4) explains that, while the application area is located within the Kaytetye linguistic territory, the native title claim group includes people whose linguistic affiliations are to neighbouring languages. This is because under the traditional laws and customs observed by members of the claim group, rights in land area are not acquired through membership of a language group and therefore, linguistic affiliation is not indicative of a person’s connection to particular land and waters. I note that the certification at Schedule R (paragraphs 4(e) and 4(f)) outlines anthropological and historical research commissioned by the Central Land Council that confirms the Akwerlpe-Waake,
Ileyarne, Lyentyawel Ileparranem and Arrawatyen landholding groups have rights and interests in the claim area and are members of the native title claim group. Schedule A (paragraphs 12–14) and Schedule F (paragraphs 10–12) provide details about who can speak for the application area, and their specific rights and interests in relation to the claimed land and waters. In particular, Schedule F (paragraphs 10-12) state: 10. In the Kaytetye land tenure system rights and interests in an estate are held by the members of a landholding group and [are] either inherited by descent from the ancestors (including adoption) or conferred on persons recruited to a landholding group by senior descent based members of the group on the basis of their non-descent connections to the estate.
11. Under the claimants’ system of traditional laws and customs those affiliated with a landholding group and its country, especially, but not only through father’s father (FF) are called apmereke-artweye in the Alyawarr and Kaytetye languages (spelt apmerek-artwey in Alyawarr) or kirda/mangaya (in the Warumungu language). Those affiliated with a landholding group and it its country, especially, but not only through mother’s father (MF), father’s mother (FM) and mother’s mother (MM) are called kwertengerle (in the Kaytetye language; spelt kwertengerl in the Alyawarr language and kurdungurlu in the Warumungu language). Apmereke- artweye and kwertengerle are jointly responsible for looking after country, an arrangement that requires the diffusion of knowledge amongst the members of a landholding group, subject to factors such as age, gender, residence and seniority. Apmereke-artweye and kwertengerle perform different, but complementary roles and therefore are indispensable to each other.
12. Members of a landholding group by virtue of non-descent connections to an estate are colloquially referred to as ‘outside kwertengerle’ if they belong to the opposite patrimoiety to the apmereke-artwey, or ‘apmereke-artwey’ if they belong to the patrimoiety of the descent based apmereke-artwey.
The obligations and restrictions on members of the native title claim group in relation to the application area are outlined in Schedule F (paragraph 13). The system of kinship including relationships between people, their country and the Altyerre (Dreaming) is detailed in Schedule F (paragraphs 7–9). Schedule F (paragraph 8) states: 8. Key features of the [kinship] system are: recognition of common spiritual and human ancestors; common and independent familial ties; terms for genealogically close kin are applied to people who are more distant and not necessarily biologically related; the classification of relatives into lines of descent from each of the four grandparents; recognition of sanctions relating to relationships (such as preferred marriage partners); recognition of group and individual connections/responsibilities to the country associated with particular landholding groups; and affiliation, on a group and individual basis, with Dreaming beings associated with particular landholding groups. The transmission of knowledge about traditional laws and customs is discussed in Schedule F (paragraphs 15–16): 15. Knowledge of traditional laws and customs has been passed from generation to generation by traditional modes of oral transmission, teaching and common practice. This continues today amongst the current generation who are members of the native title claim group. Knowledge of descent connections is transmitted orally. Individuals beyond the grandparental level are rarely remembered and earlier ancestors are ultimately believed to be spiritually descended from the
Dreaming ancestors. The applicant will ask the Court to infer that under traditional laws and customs the ancestors named in paragraph 7(a) in Schedule A (and if necessary their predecessors) were entitled to possess, occupy, use and enjoy the land and waters in [the] application area prior to the assertion of British sovereignty.
16. The members of the native title claim group continue to acknowledge and observe the traditional laws and customs passed on to them by their ancestors. While Schedules A and F refer to ‘rules of succession’ in relation to the claim area, I note that Schedule A (paragraph 10) and Schedule F (paragraph 14) states that there have been no instances of succession in the claim area. The affidavits of Tommy Thompson Kngwarraye dated 3 April 2007, Leslie Foster Mpetyane dated 3 April 2007, and Ena Rex Mpetyane dated 3 April 2007 provide information about their identity and describe their and their ancestor’s traditional association with the claim area. Tommy Thompson Kngwarraye says that his and his father’s country is Ertwerrpe, which is located on Neutral Junction Station and the Alyawarra Aboriginal Land Trust, to the south of the application area (paragraph 9). He is a Kaytetye person and member of the Ileyarne landholding group and the native title claim group (paragraph 5) and refers to his status as an ‘outside kwertengerl’ (paragraphs 12–13). Tommy Thompson Kngwarraye grew up on Singleton Station and travelled between Barrow Creek (south of the application area) and Wauchope Mine (north of the application area) for rations, and later worked as a stockman on Singleton Station ‘for many years’ and surrounding stations (paragraph 10). Prior to the Second World War, he lived on Neutral Junction and recalls travelling to Taylor Creek and Emu Bore located to the south of the application area (paragraph 11). Leslie Foster Mpetyane states that he is a traditional owner of Akwerlpe country, which ‘goes from the western side of Singleton Station right up past Greenwood on the Mungkarta Aboriginal Land Trust’ (situated on the northern boundary of the application area) (paragraphs 8, 10). He says that his rights to the application area come from descent from his father and grandfather (father’s father), and that his status in the native title claim group is apmerek-artwey (paragraph 9). I note that Leslie Foster Mpetyane’s father’s father is a named apical ancestor (see Schedule A (paragraph 7(a))). Leslie Foster Mpetyane talks about working on Singleton Station for most of his early life and participating in ceremonies which relate to his country (paragraphs 11, 12, 14–16). He refers to the old people who taught him and have passed on, and says that he now holds the knowledge and is teaching the younger people (paragraph 13). Ena Rex Mpetyane talks about being a Kaytetye person and a member of the Akwerlpe/Waake landholding group and the native title claim group (paragraph 5). Her rights and interests in the application area are because of her knowledge and long association with the application area, and she is accepted as kwertengerl (paragraph 9). She has lived at Alekarenge (on the southern boundary of the application area) and around the application area ‘for a long time’ / ‘since about the 1960s’ (paragraphs 9 and 14). Her mother was born at Wauchope (north of the application area) and lived at Wauchope, Singleton Station and Alekarenge (paragraph 11). Ena Rex Mpetyane was born at the old Wauchope Mine, often walked across Singleton Station from Wauchope to Warrabri Aboriginal Reserve (Alekarenge) and lived at Wauchope, McLaren Creek and the old Singleton Homestead. Her mother told her stories about the country as they travelled (paragraph
12). She continues to hunt and collect bush medicine and food on Singleton on most weekends (paragraph 15). Excerpts from Koch and Koch (1993) confirm links between the Kaytetye people and the application area from the time of first contact with European people circa 1860 until the present time. The writings describe interactions between the Kaytetye and European people from the 1870s to 1930s, including the supply of rations to Aboriginal people in the area; pastoral settlement; and ‘skirmishes’, violence and killings between the Kaytetye and European people. The book by Spencer and Gillen (1904) also links the ‘Kaitish’ (also Kaytey / Kaytetye) language group to the application and surrounding area. On the basis of the information provided in the application, I am satisfied that a sufficient factual basis is provided to support the assertion that members of the Akwerlpe-Waake, Ileyarne, Lyentyawel Ileparranem and Arrawatyen landholding groups have, and their predecessors had, an association with the application area.
Result re s. 190B(5)(b) I am satisfied that the factual basis provided is sufficient to support the assertion described by s. 190B(5)(b).
Reasons re s. 190B(5)(b) In Gudjala , Dowsett J states that the factual basis must identify a society of people living according to identifiable laws and customs, and having normative content at the time of sovereignty. The factual basis must show that there was, at and prior to sovereignty (or at least first contact), a society which had a system of laws and customs from which relevant existing laws and customs were derived and traditionally passed on to the existing claim group—at [65–66] and [81].
His Honour also notes that the applicant must identify a link between the apical ancestors and any society existing at sovereignty even if that link arose at a later stage, and explain why the claim group is limited to the descendants of the identified apical ancestors. This explanation must refer to traditional laws and customs presently acknowledged and observed—Gudjala at [63], [66] and [81]. Schedule A (paragraph 2) notes that there are ‘four (4) landholding groups [Akwerlpe-Waake, Ileyarne, Lyentyawel Ileparranem and Arrawatyen] which together comprise the native title claim group [and] constitute a community or group whose members hold the common or group rights’. Schedule A (paragraph 15) states that ‘the composition of the native title claim group is based upon the applicant’s system of traditional laws and customs’. The distribution of native title rights and interests between the Akwerlpe-Waake, Ileyarne, Lyentyawel Ileparranem and Arrawatyen landholding groups is in accordance with traditional laws and customs (Schedule E, paragraph 5). I note that the claimed native title rights and interests existed and continue to exist in relation to the whole application area (Schedule E, paragraph 2). General points about the claimed native title rights and interests are also stated in Schedule F (paragraphs 1–3):
1. Under the claimants’ system of traditional laws and customs the members of the native title claim group are the traditional Aboriginal owners of the land and waters comprised in the application area.
2. The native title rights and interests described in Schedule E are held under and exercised in accordance with the traditional laws acknowledged and customs observed by members of the native title claim group and their ancestors, since time immemorial, including: (a) at the time when British sovereignty was asserted; and (b) at the time of contact with non-Aboriginal people.
3. The traditional laws and customs of Kaytetye society continue to be acknowledged and observed by members of the native title claim group, who: (a) under those laws and customs inherited rights and interests in the application area through descent from the ancestors or acquired rights in the area when recruited to the membership of a landholding group by senior descent based members of the group on the basis of non-descent connections to an estate; and (b) have a connection to the application area by those laws and customs. Schedule F (paragraphs 4–6) outlines the foundations of the law for the Kaytetye including spiritual beliefs; the legal, social, kinship and religious systems; and ‘Dreaming’ places, ritual and songs. Traditional laws and customs that connect members of the native title claim group and their ancestors to the application area are shown in Schedule F (paragraph 17(a)–(g)). In particular: (a) the application area is part of Kaytetye territory and affiliated with the Akwerlpe-Waake, Ileyarne, Lyentyawel Ileparranem and Arrawatyen landholding groups respectively.
(b) subject to paragraph 4 in Schedule A, the application area is identified with the Kaytetye and neighbouring Warumungu and Alyawarr languages.
(c) ethnographic and historical sources confirm that at the time of contact and settlement of the region, and continuing to the present day, people with affiliation to the languages traditionally associated with the region of the application area, including members of the native title claim group and their ancestors, maintained physical, spiritual and other cultural associations with their country, including occupation of the application area itself: see, for example, Stuart (1865)[1975]), Spencer and Gillen (1904), Eylmann (1908), Stanner (1934-35 [1975]), Linklater (1940), Bell (1978, 1983), Moyle (1986) and Koch (1993). [I note that relevant excerpts of Stuart (1865)[1975]), Spencer and Gillen (1904), Bell (1983), Moyle (1986) and Koch (1993) have been provided to me.]
(d) members of the native title claim group have a connection with the application area based on knowledge received from the ancestors, personal experience and their continuing acknowledgment and observance of traditional laws and customs.
(e) continuity of spiritual and ancestral connections to the application area is founded on a communally acknowledged belief that spiritual ancestors created both the land and ongoing human relationships with it.
(f) continued observance of customary secular and spiritual practices by members of the native title claim group reaffirms their connection with the perceived spiritual properties of the land
and waters in the application area. Such practices often, but not always, relate to Dreaming tracks and associated sites of significance.
(g) many members of the native title claim group have had a continuing physical connection with the application area throughout their lives… Schedule G details the following activities that the native title claim group continue to carry out with respect to the claim area: 1. Travelling across the land. 2. Camping on the land. 3. Hunting and gathering food resources on the land. 4. Collecting other natural resources from the land including water, firewood, timber, bush tobacco and bush medicines. 5. Sharing and exchanging resources obtained from the land. 6. Teaching children and young people about the land. 7. Maintaining and passing on in culturally appropriate ways geographical and spiritual knowledge about the land, and knowledge of the location and use of natural resources. 8. Maintaining and passing on religious knowledge, laws and property (including stories, songs, ceremonies, objects and designs) relating to the land. 9. Conducting and participating in ceremonies and meetings for spiritual or secular purposes. 10. Maintaining and observing cultural beliefs and practices concerning rites of passage. 11. Caring for sites and other places of importance on or associated with the land in accordance with spiritual obligations. 12. Observing laws and sanctions restricting access to areas of the land and to the knowledge and beliefs relating to it according to age, gender, knowledge, initiation status and/or other culturally appropriate reasons. 13. Preventing physical and spiritual harm to the land by maintaining, holding and transmitting religious and secular rights, laws and responsibilities in relating to the land in accordance with traditional laws and customs. I infer from this information in Schedules A, E, F and G that members of the native title claim group comprise and their ancestors comprised a normative society, that is, a group of people who have a system of laws and customs that functioned prior to first contact with European people and continues to function at the present time. Further, the native title claim group continues to undertake activities on the application area that are consistent with their claimed native title rights and interests, and which are derived from their traditional laws and customs. I also refer to the summarised affidavits of Tommy Thompson Kngwarraye, Leslie Foster Mpetyane and Ena Rex Mpetyane in my reasons under s. 190B(5)(a), which demonstrate their and their ancestor’s knowledge of laws and customs, ceremonies and stories about the application area. These traditional laws and customs give rise to the claimed native title rights and interests in Schedule E. Excerpts from Spencer and Gillen (1904), Bell (1983) and Moyle (1986) demonstrate the maintenance and importance of ceremony, totems, cultural and spiritual stories, and laws and customs of the Kaytetye. Spencer and Gillen (1904) discuss traditional laws and customs, especially in relation to access to country, social organisation, ceremonies connected to totems and marriage, and creation stories. Bell (1983, page 48) provides consistent information about the ‘Kaytej’ (Kaytetye) area as extending from ‘around Barrow Creek and the Stirling Swamp to north of the
Devil’s Marbles and west to the Hanson River’. This is consistent with the application area. Moyle (1986) outlines information about traditional ceremonies and songs. Therefore, based on the information in the application and the additional information provided by the Central Land Council, I am satisfied that there is a sufficient factual basis to support the assertion that there exists traditional laws acknowledged by and traditional customs observed by members of the Akwerlpe-Waake, Ileyarne, Lyentyawel Ileparranem and Arrawatyen landholding groups and their predecessors that give rise to the native title rights and interests claimed in Schedule E.
Result re s. 190B(5)(c) I am satisfied that the factual basis provided is sufficient to support the assertion described by s. 190B(5)(c).
Reasons re s. 190B(5)(c) The decision in Gudjala notes that the applicant must demonstrate the existence of a society at the time of sovereignty that observed laws and customs from which the current traditional laws and customs derived. The applicant also must show some basis for inferring that there was a society at and before sovereignty, which had a system of laws and customs from which the existing laws and customs were derived and traditionally passed on to the existing claim group—at [81–82].
I am satisfied that there is sufficient factual basis to support the assertion of a continued observation of traditional laws and customs from which the claimed native title rights and interests are said to derive. Schedule M (paragraphs 3–4) gives examples of members of the native title claim group maintaining an ongoing physical connection to the application area through being born and raised on or near the area, and initiating and participating in ceremonies at sites on or adjacent to the application area. Schedules A, F, G and R explicitly outline information about traditional laws and customs determining kinship, continuing connection to and use of the application area, and the transmission of knowledge through the generations prior to and since sovereignty. Tommy Thompson Kngwarraye, Leslie Foster Mpetyane and Ena Rex Mpetyane provide evidence in their affidavits of a spiritual and physical attachment to the application area throughout their and their ancestor’s lives, and the continuing exercise of rights and interests in the land and waters. In this regard, I refer to the affidavit evidence summarised above under the reasons for s. 190B(5)(a). For these reasons, I am satisfied that there is sufficient factual basis to support an assertion that the native title claim group continues to hold native title in accordance with their traditional laws and customs.
Combined result for s. 190B(5) The application satisfies the condition of s. 190B(5) because the factual basis provided is sufficient to support each of the particularised assertions in s. 190B(5), as set out in my reasons above.
Section 190B(6) Prima facie case The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.
Result The application satisfies the condition of s. 190B(6). The claimed native title rights and interests that I consider can be prima facie established are identified in my reasons below.
Reasons Under s. 190B(6) I must consider that, prima facie, at least some of the native title rights and interests claimed by the native title group can be established. The Registrar takes the view that this requires only one (1) right or interest to be registered. In Doepel, Mansfield J noted at [16] that s. 190B(6), together with ss. 190B(5) and (7), ‘clearly calls for consideration of material which may go beyond the terms of the application, and for that purpose the information sources specified in s. 190A(3) may be relevant’. The term ‘prima facie’ was considered in North Ganalanja Aboriginal Corporation v Qld (1996) 185 CLR 595. In that case, the majority of the court (Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ) noted: The phrase can have various shades of meaning in particular statutory contexts but the ordinary meaning of the phrase ‘prima facie’ is: ‘At first sight; on the face of it; as it appears at first sight without investigation’. [citing Oxford English Dictionary (2nd ed) 1989]. I have adopted the ordinary meaning referred to by their Honours in considering this application, and in deciding which native title rights and interests claimed can be established prima facie. I note that this meaning of prima facie was considered and approved in Doepel—at [134–135]. Briefly, the court concluded that although the above case was decided before the 1998 amendments to the Act, there is no reason to consider the ordinary usage of ‘prima facie’ adopted in that case to be no longer appropriate. My task under s. 190B(6) is to consider whether there is any factual material before me demonstrating the existence of the particular native title rights and interests claimed, having regard to relevant law about what is a ‘native title right and interest’ (as that term is defined in s. 223) and whether or not the right has been extinguished. Section 223(1) states: The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia.
I have taken the view that it is under this condition that I must consider whether the claimed rights and interests have been found by the courts to be ‘native title rights and interests’ within s. 223. If a claimed right and interest has been found by the courts to fall outside the scope of s. 223, then it will not be capable of being ‘prima facie established’ for the purposes of s. 190B(6). I have noted already the description of native title rights and interests claimed by the applicants in Schedule E of the application under my reasons for decision for s. 190B(4) above. I turn now to a consideration of whether each of the native title rights and interests claimed in Schedule E can be prima facie established: (a) the right to access and travel over any part of the land and waters. Result: Established The affidavit evidence of Tommy Thompson Kngwarraye (paragraphs 8–11, 13), Leslie Foster Mpetyane (paragraphs 8–11) and Ena Rex Mpetyane (paragraphs 9, 10, 12 , 14) support this claimed native title right and interest. The assertions in Schedule G (paragraph 1) and Schedule M (paragraphs 1–3) further support the claim that members of the native title claim group continue to access and travel across the application area.
(b) the right to live on the land, and for that purpose, to camp, erect shelters and other structures. Result: Established The affidavit evidence of Tommy Thompson Kngwarraye (paragraphs 8–10, 13), Leslie Foster Mpetyane (paragraphs 8–11) and Ena Rex Mpetyane (paragraphs 9, 12) support this claimed native title right and interest. The assertions in Schedule G (paragraph 2) and Schedule M (paragraphs 1–3) demonstrate that members of the native title claim group continue to camp in and use the application area.
(c) the right to hunt, gather, take and use the natural resources of the land and waters, including the right to access, take and use natural water resources on or in the land. Result: Established The affidavit evidence of Tommy Thompson Kngwarraye (paragraphs 8, 11, 13), Leslie Foster Mpetyane (paragraphs 8–11) and Ena Rex Mpetyane (paragraphs 9, 10, 14, 15) support this claimed native title right and interest. The assertions in Schedule G (paragraphs 3, 4) and Schedule M (paragraphs 1, 2, 4) show that members of the native title claim group continue to hunt, and collect bush medicines, bush tucker, firewood, timber and water from the application area.
(d) the right to access, maintain and protect places and areas of importance on or in the land and waters. Result: Established In relation to the use of the word ‘protect’ in this claimed right, I am satisfied that it does not involve an assertion of a right to control access and to exclude others from the claim area. In this regard, I note the comments of the Full Court in Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 (Alyawarr) in relation to a claimed right to ‘have access to, maintain and protect places and areas of importance on or in the land and waters …’ where it was found that such a right did not necessarily imply a general control of access. In light of the above, I find that this right is capable of being prima facie established in relation to those areas where a claim to exclusive possession cannot be recognised. The affidavit evidence of Tommy Thompson Kngwarraye (paragraphs 8, 12), Leslie Foster Mpetyane (paragraphs 8–11, 14–16) and Ena Rex Mpetyane (paragraphs 9, 10, 13) support this claimed native title right and interest. The assertions in Schedule F (paragraphs 4–6, 13, 14), Schedule G (paragraph 11) and Schedule M (paragraphs 1, 4) further support the claim that members of the native title claim group continue to access, protect and maintain areas of spiritual importance.
(e) the right to do the following activities on the land: (i) engage in cultural activities; (ii) conduct ceremonies; (iii) hold meetings; (iv) teach the physical and spiritual attributes of places and areas of importance; (v) participate in cultural practices relating to birth and death including burial rites. Result: Established The affidavit evidence of Tommy Thompson Kngwarraye (paragraphs 8, 9, 12, 13), Leslie Foster Mpetyane (paragraphs 8–16) and Ena Rex Mpetyane (paragraphs 9, 10, 12, 13) support this claimed native title right and interest. The assertions in Schedule F (paragraphs 4–6, 14–16), Schedule G (paragraphs 6–10) and Schedule M (paragraphs 1, 4) demonstrate that members of the claim group continue to maintain, participate in and teach cultural, spiritual and ceremonial activities.
(f) the right to make decisions about the use and enjoyment of the land and waters by Aboriginal people who recognise themselves as governed by Aboriginal traditional laws and customs and who acknowledge the traditional laws and customs of the claimants; Result: Established I note the following consent determinations that provide a non-exclusive right to ‘make decisions about use and enjoyment’ of a particular claim area: Ward v State of Western
Australia (2006) FCA 1848; Patta Warumungu People v Northern Territory (2007) FCA 1386; and Mundraby v Queensland (2006) FCA 436. The affidavit evidence of Tommy Thompson Kngwarraye (paragraphs 8, 12, 13), Leslie Foster Mpetyane (paragraphs 8–10, 14, 16) and Ena Rex Mpetyane (paragraphs 9, 13) support this claimed native title right and interest.
(g) the right to share and exchange natural resources obtained on or from the land and waters, including traditional items made from the natural resources. Result: Established The assertions in Schedule G (paragraph 5) support the claim that members of the native title claim group continue to share and exchange natural resources obtained from the land.
I note that the native title rights and interests claimed do not confer possession, occupation, use and enjoyment of the application area to the exclusion of all others, and that the applicant acknowledges that the native title rights and interests are subject to and exercisable in accordance with valid laws of the Northern Territory of Australia and the Commonwealth of Australia. Section 190B(7) Traditional physical connection The Registrar must be satisfied that at least one member of the native title claim group: (a) currently has or previously had a traditional physical connection with any part of the land or waters covered by the application, or (b) previously had and would reasonably be expected to currently have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to the land or waters) by: (i) the Crown in any capacity, or (ii) a statutory authority of the Crown in any capacity, or (iii) any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease.
Result The application satisfies the condition of s. 190B(7).
Reasons Under s. 190B(7)(a), I must be satisfied that at least one (1) member of the native title claim group currently has or previously had a traditional physical connection with any part of the land or waters covered by the application. As ‘traditional physical connection’ is not defined in the Act, I interpret this phrase to mean that physical connection should be in accordance with the particular traditional laws and customs relevant to the claim group. I also have regard to the High Court’s decision in Yorta Yorta about the meaning of ‘traditional’, as outlined in my reasons for s. 190B(5) above.
In regards to this condition, I refer to my reasons above in relation to s. 190B(5) and s. 190B(6), and in particular the affidavit evidence of Tommy Thompson Kngwarraye, Leslie Foster Mpetyane and Ena Rex Mpetyane and Schedule M, which in my view indicates that at least one (1) member of the claim group currently has a traditional physical connection with the claim area. Section 190B(8) No failure to comply with s. 61A The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that because of s.61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts), the application should not have been made.
Delegate’s comments Section 61A contains four subsections. The first of these, s. 61A(1), stands alone. However, ss. 61A(2) and (3) are each limited by the application of s. 61(4). Therefore, I consider s. 61A(1) first, then s. 61A(2) together with (4), and then s. 61A(3) also together with s. 61A(4). I come to a combined result at page 37 below.
No approved determination of native title: s. 61A(1) A native title determination application must not be made in relation to an area for which there is an approved determination of native title.
Result The application meets the requirement under s. 61A(1).
Reasons A search of the National Native Title Register indicates that there are no determinations of native title in relation to the application area.
No Previous Exclusive Possession Acts (PEPAs): ss. 61A(2) and (4) Under s. 61A(2), the application must not cover any area in relation to which (a) a previous exclusive possession act (see s. 23B)) was done, and (b) either: (i) the act was an act attributable to the Commonwealth, or (ii) the act was attributable to a state or territory and a law of the state or territory has made provisions as mentioned in s. 23E in relation to the act.
Under s. 61A(4), s. 61A(2) does not apply if: (a) the only previous exclusive possession act was one whose extinguishment of native title rights and interests would be required by section 47, 47A or 47B to be disregarded were the application to be made, and (b) the application states that ss. 47, 47A or 47, as the case may be, applies to it.
Result The application meets the requirement under s. 61A(2), as limited by s. 61A(4).
Reasons Schedule B (paragraph 3) of the application states that ‘subject to Schedule L, any area within the boundaries of NT Portion 653 in relation to which a previous exclusive possession act under section 23B of the NTA has been done is excluded from the application’. Schedule L notes that ‘none of sections 47, 47A or 47B of the Act apply to the [application] area’.
No exclusive native title claimed where Previous Non-Exclusive Possession Acts (PNEPAs): ss. 61A(3) and (4) Under s. 61A(3), the application must not claim native title rights and interests that confer possession, occupation, use and enjoyment to the exclusion of all others in an area where: (a) a previous non-exclusive possession act (see s. 23F) was done, and (b) either: (i) the act was an act attributable to the Commonwealth, or (ii) the act was attributable to a state or territory and a law of the state or territory has made provisions as mentioned in s. 23I in relation to the act.
Under s. 61A(4), s. 61A(3) does not apply if: (a) the only previous non-exclusive possession act was one whose extinguishment of native title rights and interests would be required by section 47, 47A or 47B to be disregarded were the application to be made, and (b) the application states that ss. 47, 47A or 47, as the case may be, applies to it.
Result The application meets the requirement under s. 61A(3), as limited by s. 61A(4).
Reasons Schedule E (paragraph 3) of the application states that ‘the native title rights and interest claimed do not confer possession, occupation, use and enjoyment of the application area to the exclusion of all others’. I am satisfied that there are no claims to exclusive possession of native title in the application area.
Combined result for s. 190B(8) The application satisfies the condition of s. 190B(8), because it meets the requirements of s. 61A, as set out in the reasons above.
Section 190B(9) No extinguishment etc. of claimed native title The application and accompanying documents must not disclose, and the Registrar/delegate must not otherwise be aware, that: (a) a claim is being made to the ownership of minerals, petroleum or gas wholly owned by the Crown in the right of the Commonwealth, a state or territory, or (b) the native title rights and interests claimed purport to exclude all other rights and interests in relation to offshore waters in the whole or part of any offshore place covered by the application, or (c) in any case, the native title rights and interests claimed have otherwise been extinguished, except to the extent that the extinguishment is required to be disregarded under ss. 47, 47A or 47B.
Delegate’s comments I consider each sub-condition under s. 190B(9) in turn and I come to a combined result at page 39 below.
Result re s. 190B(9)(a) The application satisfies the sub-condition of s. 190B(9)(a).
Reasons re s. 190B(9)(a) Schedule Q of the application states that ‘the applicant does not claim ownership of minerals, petroleum or gas wholly owned by the Crown’.
Result re s. 190B(9)(b) The application satisfies the sub-condition of s. 190B(9)(b).
Reasons re s. 190B(9)(b) Schedule P of the application states that any claim by the native title claim group of exclusive possession of all or part of an offshore place is ‘not applicable’. I am satisfied on the basis of the information in Schedules B and C and Attachment C that the application area does not include any offshore areas.
Result re s. 190B(9)(c) The application satisfies the sub-condition of s. 190B(9)(c).
Reasons re s. 190B(9)(c) There is no information in the application or otherwise to indicate that any of the native title rights and/or interests claimed in the application area have been extinguished.
Combined result for s. 190B(9) The application satisfies the condition of s. 190B(9), because it meets all of the three sub- conditions, as set out in the reasons above. [End of reasons]
Attachment A Summary of registration test result
Application name: Singleton
NNTT file no.: DC00/10
Federal Court of Australia file no.: NTD6011/00
Date of registration test decision: 12 December 2007
Test condition Sub-condition/requirement Result (see ss.190B and C of the Native Title Act 1993) s. 190C(2) Combined result: Met
re s. 61(1) Met
re s. 61(3) Met
re s. 61(4) Met
re s. 61(5) Met
re s. 62(1)(a) Met
re s. 62(1)(b) Met
re s. 62(2)(a) Met
re s. 62(2)(b) Met
re s. 62(2)(c) Met
re s. 62(2)(d) Met
re s. 62(2)(e) Met
re s. 62(2)(f) Met
re s. 62(2)(g) Met
re s. 62(2)(h) Met s. 190C(3) Met s. 190C(4) Met s. 190B(2) Met s. 190B(3) Met s. 190B(4) Met s. 190B(5) Combined result: Met
re s. 190B(5)(a) Met
re s. 190B(5)(b) Met
re s. 190B(5)(c) Met s. 190B(6) Met s. 190B(7) Met s. 190B(8) Combined result: Met
re s. 61A(1) Met
re ss. 61A(2) and (4) Met
re ss. 61A(3) and (4) Met s. 190B(9) Combined result: Met
re s. 190B(9)(a) Met
re s. 190B(9)(b) Met
re s. 190B(9)(c) Met
Attachment B Documents and information considered The following lists all documents and other information that were considered by the delegate in coming to his/her decision about whether or not to accept the application for registration. In determining this application I have considered and reviewed the documents listed below: The Singleton amended application as filed pursuant to an order of the Federal Court made on 30 July 2007. The Federal Court Order granting leave to amend the Singleton application on 30 July 2007. Relevant documents from the Tribunal’s files for the Singleton application. The Tribunal’s Geospatial Services geospatial assessment and overlap analysis of the Singleton application (GeoTrack number 2007/1426) dated 24 August 2007. Copies of the following book excerpts provided by the Central Land Council to the Tribunal on 5 November 2007: • Bell, D. (1983) Daughters of the Dreaming, McPhee Gribble, Melbourne, pages 47–50, 54, 60–70, 130–132, 188–190. • Koch G. and Koch, H. (1993) Kaytetye Country: an Aboriginal history of Barrow Creek area, Alice Springs, Institute for Aboriginal Development, pages xiii–xvii, 66-72, 112–115. • Moyle, R.M. (1986) Alyawarra Music: songs and society in a central Australian community, Canberra, Australian Institute of Aboriginal Studies, pages 15, 104–106. • Spencer, B. and Gillen F.J. (1904) The Northern Tribes of Central Australia, Macmillian and Co, London, pages 1–5, 12–14, 30–31, 74–76, 97–98, 107, 135–136, 152–165, 184–191, 198, 628–632, endpiece (map). • Stuart, J.M. ([1865], facsimile edition 1975) The Journals of John McDouall Stuart During the Years 1858, 1859, 1860, 1861 and 1862, Library Board of South Australia, Adelaide, pages 198– 215. [End of document}